Legal Think Tank Calls for Balanced Approach to Legal Aid Reform

23 September 2010

The Legal Services Institute (LSI) has warned the Government that it must consider more than just the financial costs of legal aid if the system is to be maintained at the level “that a modern ‘decent society’ should expect”.

In a paper published today, titled ‘Civil Legal Aid: Squaring The (Vicious) Circle’, the LSI argues that any reform of legal aid must also take into account the supply of legal rights to citizens, quality of service, access to justice and the costs to society of leaving critical legal rights under-funded.

The LSI is a policy think tank funded by The College of Law as part of its charitable foundation. Its director Professor Stephen Mayson said: “Although it is entirely reasonable that Government and taxpayers should continue to expect greater efficiencies and value for the money in the delivery of legal aid, this must be subject to the further imperative that the supply of funding should not be considered in isolation.

“If efficiency savings in legal aid lead to any undermining of the rule of law, or compromise the administration of or access to justice, while we might have achieved a degree of fiscal prudence, society will undoubtedly be the poorer for it.”

In today’s paper the LSI says that the legal aid system faces a vicious circle: some people do not receive legal representation when the expectations of a ‘decent society’ suggest that they should; some lawyers do not receive a reasonable rate of remuneration for legal aid work; the public purse will not stretch to allow for either greater eligibility or greater remuneration.

The LSI suggests that there are three primary “fault lines” in the current approach to legal aid, which must be addressed in tandem to square the circle. These are, it says, “a fragmented and inefficient supplier base, a failure to match rights and funding, and broader systemic shortcomings”.

It argues that the large number of suppliers of legal aid work gives rise to greater overhead costs, both for the Legal Services Commission, which runs the legal aid scheme in England and Wales, and for the law firms themselves, suggesting that best value for money is not being achieved.

The most important of all the public interest issues at play in the debate about the future of legal aid is, according to the LSI, the need to balance the increasing number of legal rights afforded to citizens, many of which are aimed at the most vulnerable and disadvantaged in society, with the availability of funds to allow them to pursue these rights.

Professor Mayson said: “If certain rights are not included within the eligibility criteria and a substantial public consensus disagrees, there will be serious questions about whether society is, in truth, ‘decent’. If rights are included but there is not sufficient public funding available to pursue them, the same conclusion might be reached. In both cases there will have been a denial of access to justice, which is likely to undermine the rule of law itself and lead to significant lack of respect for it and the institutions of the State.”

The paper concludes by warning that removing legal aid eligibility or funding could lead those unable to pursue their legal rights to suffer escalating problems such as unemployment, loss of housing, deteriorating health or family breakdown.

“The legal aid budget might have been protected from having to support the client in facing a legal issue, but there will still be a cost to society and the public purse (and possibly an even greater cost overall) arising from these consequential problems,” the paper states.